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Judgment
V. Kanagaraj, J.—This appeal has arisen from out of the fair and decretal order dated 28.10.1983 made in I.A. No. 251 of 1979 in O.S.
No. 614 of 1979, passed by the Court of Subordinate Judge, Pattukottai, whereby it has granted the final decree on the preliminary decree passed
in the Original Suit.
The appellant is the plaintiff and he filed a suit originally in O.S. No. 9 of 1967 on the file of District Court, West Thanjavur for partition and
separate possession of her one fourth share in the suit properties providing for payment of all liabilities of the estate, for costs of the suit and for
directing the 5th defendant to pay costs of the plaintiff; that it was transferred to the file of Sub Court, Thanjavur and re-numbered as O.S. No. 55
of 1967; that defendants 1,2, 4 and 5 contested the suit; that a Commissioner was appointed to inspect the suit properties and to file a report; that
issues were framed for consideration; that witnesses were examined and documents were marked; that after trial the Additional Subordinate Judge,
Thanjavur passed a preliminary decree on 31.10.1969 in respect of the plaintiff''s 1/4th share in the plaint A to D schedules and movables as per
the Commissioner''s inventory; that the trial court ordered that the exact amount of the outstanding due to the estate and due from the estate would
be decided at the time of passing of final decree, that the 2nd defendant would be paid Rs. 1500/- out of the estate towards the funeral expenses
as also the expenses of litigation in opposing the suit filed against the estate and in protecting its interest; that the costs of the suit as regards the
plaintiff, 1st defendant and 2nd defendant would come out of the estate and defendants 4 and 5 would bear their own costs; that mesne profits
would be determined in a separate application; that decree to be drafted after the payment of court fee.
Thereafter the plaintiff filed I.A. No. 12 of 1979 in O.S. No. 55 of 1967 to pass a final decree; that petition was transferred to Subordinate
Judge, Pattukottai and the petition and suit were re-numbered as I.A. No. 251 of 1979 in O.S. No. 614 of 1979; that a Commissioner was
appointed; that the parties filed objections to the Commissioner''s report; that the trial court rejected the report of the first commissioner; that a 2nd
commissioner was appointed to file the report and plan; that the trial court passed a final decree on 28.10.1983, accepting and modifying the
divisions made by the commissioner in his report and allotted 1/4th share in A to E schedule to the plaintiff; that the trial court allotted certain items
in A to E schedules also to the 1st respondent; that towards novelty the trial court ordered that the petitioner/plaintiff has to pay a compensation of
Rs. 4903/- to the 2nd respondent''s heirs; that the 1st respondent in turn has to pay compensation of Rs. 5367/- to the petitioner and Rs. 11,193/-
to the 2nd respondent''s heirs; that the trial court further ordered that costs of the final decree proceedings to the petitioner would be paid by the
first respondent and that the parties would bear the Commissioner''s fee themselves.
Aggrieved, the plaintiff in the suit has come forward to prefer the above Appeal Suit on grounds such as that the lower court has not followed
any uniform principle in the allotment of properties, further totally ignoring the earlier Commissioner''s report; that the lower court has erred in fixing
the value of the ''D'' schedule properties and in awarding compensation at the rate of Rs. 4,000/-each to the appellant and the heirs of the 2nd
respondent; that likewise the lower court has also erred in fixing the value and awarding compensation in respect of ''A'' schedule properties; that
the lower court further erred in the division and allotment of items 8,12,14 and 15 of A schedule properties; that the lower court ought to have at
least allotted the rice mill and Arial Pattarai portion to the appellant; that the reasoning of the lower court in respect of a male son pursuing the
family business is not sustainable in law; that the lower court has also erred in arriving at the value of the property and placing reliance on the part
of the commissioner for that matter. On such grounds the appellant has filed the above Appeal Suit to the relief extracted supra.
During arguments, the learned counsel appearing on behalf of the appellants would submit that it is a final decree petition and orders passed
thereon by the lower court, which are being testified before this court in the above appeal; that the value fixed by the Commissioner is not
acceptable; that the partition and allotment of the separate possession has merely taken place; that the appellant is the uterine sister of the first
defendant in the suit and one M.K. Abdul Rahiman Rowther; that 2nd defendant is the widow of M.K. Abdul Rahiman Rowther and others are
also related to each other; that the plaintiff claims 1/4 share to the whole of the suit properties and half share for the first defendant and 1/4 share
for the 2nd defendant; that the preliminary decree had been passed on 31.10.1969 declaring the plaintiff''s 1/4th share in the plaint ''A'' and ""D
schedule properties; that on 17.12.1977 the final decree petition was also filed originally before the court of Subordinate Judge, Thanjavur, which
later got transferred to the court of the Subordinate Judge, Pattukottai; that on 6.2.1982 the Commissioner was appointed; that on 7.3.1982 the
inspection was done by the Commissioner; that on 18.5.1982 a second inspection was conducted; that on 12.7.1982 the Commissioner''s report
was filed and on 6.9.1982 the second report was filed; that on 13.9.1982 the objection was filed by the first defendant; that on 18.10.1982
considering the Commissioner''s report the court rejected the Commissioner''s report and appointed a fresh commissioner, who inspected the suit
schedule properties on three occasions, viz., on 13.11.1982, 19.12.1982, and on 9.1.1983; that on 8.3.1983 the Commissioner ultimately filed its
report; that on 23.4.1983 the plaintiff filed objection to the report; and that the final decree which is subject to the present appeal has been passed
on 28.10.1983.
The learned counsel would further point out that even though there are several items of properties, the application was restricted only to one
item, i.e., rice mill in the ''A'' schedule and items 7,9 to 11,13 and 17; that it has been dealt with by the lower court as point No. 8 and held that
there was nothing to object; that regarding the other properties there was no serious dispute; that the objections are two fold; (1) the value fixed on
the date of plaint cannot be taken note of; secondly it is the suit of the year 1967 and the lower court should not have taken the value of the date of
the plaint, but of the date of the decree; and on such arguments purely on factual position of the case the learned counsel would ultimately pray to
allow the appeal setting aside the fair and decretal order passed by the lower court in the final decree petition.
On the other hand, the learned counsel appearing for respondents 1 and 5 would advance their arguments stoutly opposing the above appeal
and respondents 2,3,4, and 6 to 12 have not made any appearance before this court at the time of the conduct of the enquiry in the above Appeal
Suit and therefore, it has become incumbent on the part of this court to decide the above Appeal Suit in consideration of the facts pleaded having
regard to the materials placed on record and upon hearing the learned counsel for the appellant and respondents 1 and 5 as well.
It is a suit for partition and separate possession and the suit has been decreed as early as on 31.10.1969 based on which the final decree
petition has been filed in which the court below having given all opportunities for parties to be heard and adhering to the decree passed in the suit,
appointing an advocate-commissioner and on being dissatisfied with the performance of the advocate-commissioner originally appointed cancelling
the same a second appointment had been made by the lower court appointing a fresh commissioner, who on three occasions having inspected the
suit properties thoroughly had ultimately filed his report on 8.3.1983; that objections have also been filed by both sides to the report of the
Commissioner and in full appreciation and overall consideration of the facts and circumstances of the case, the Commissioner''s report, the
objections raised and adhering the decree, the legality involved pertaining to the subjects, the lower court as on 28.10.1983 has passed the final
decree regarding the division physically effected of the suit properties testifying the validity of which the plaintiff has come forward to file the above
Appeal Suit on grounds extracted supra.
Neither the grounds of the appeal nor the arguments advanced on the part of the appellants by their counsel are impressive; nor do they make
any point to interfere the fair and decretal order passed by the lower court on the final decree petition; nor does this court honestly feel that such a
contingency has been created in the whole appeal preferred by the appellant objecting to the fair and decretal order passed by the lower court on
the final decree petition.
A careful perusal of the fair and decretal order passed by the court of the Subordinate Judge, Pattukottai in I.A. No. 251 of 1979 in O.S. No.
614 of 1979 would clearly reveal that it has not only traced the facts of the case without missing even the minute point but framing its own point for
consideration and allowing parties to exhaust their remedies in the manner known to law with adequate opportunity would also appoint the
commissioner and based on the report of the commissioner, classifying the schedule properties and to the extent possible balancing the allocation
proportionate to the shares of parties as per decree in which no strong reasons are able to be found for causing interference by this court as it is
sought for on the part of the appellants to be made and therefore, this court is of the firm view that no interference need be made into the well
considered and merited fair and decretal order passed by the lower court; that this court is also not able to find any patent error of law or
perversity in approach in the allocation of the shares to the parties concerned. Since the same has been done in full consideration of the
convenience of parties including the Mill portion and therefore, this court is not inclined to cause interference into the fair and decretal order passed
in the final decree petition and hence the following judgment:
In result
1) The above Appeal Suit does not merit acceptance and becomes liable to be dismissed and is dismissed accordingly;
2) The fair and decretal order dated 28.10.1983 made in I.A. No. 251 of 1979 in O.S. No. 614 of 1979 passed by the court of Subordinate
Judge, Pattukottai is confirmed.
3)However, in the circumstances of the case, there shall be no order as to costs.